Vincent v. Jefferson County Board of Education

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

IN THE SOUTHERN DIVISION

EMILY VINCENT ]

]

Plaintiff, ]

]

v. ] Case No.: 2:21-cv-00514-ACA

]

JEFFERSON COUNTY BOARD ]

OF EDUCATION, et al., ]

]

Defendants. ]

MEMORANDUM OPINION

Plaintiff Emily Vincent was employed by Defendant ATI Holdings, LLC, as

an athletic trainer but was assigned to work at Pinson Valley High School every day

pursuant to a contract between ATI and Pinson Valley. A couple days after

Ms. Vincent learned that the athletic director and head football coach at Pinson

Valley, Defendant Sam Shade, said he did not like working with women, Defendant

Michael Turner, the principal at Pinson Valley, requested that ATI remove

Ms. Vincent from the school. After the removal, ATI offered Ms. Vincent her pick

of its other available positions and Ms. Vincent accepted one with a corresponding

pay cut.

Ms. Vincent filed suit against the Jefferson County Board of Education, ATI,

Mr. Shade, and Mr. Turner. The remaining claims in this case are (1) gender

discrimination in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

(“Title VII”), against ATI; (2) retaliation in violation of Title VII against ATI; (3)

intentional interference with a business relationship under Alabama law against

Mr. Shade; and (4) intentional interference with a business relationship under

Alabama law against Mr. Turner. (Doc. 7 at 25–47; see doc. 59).

Currently before the court is ATI’s motion for summary judgment. (Doc. 53).

The court has considered the arguments and evidence submitted by the parties and

WILL GRANT ATI’s motion for summary judgment because Ms. Vincent has not

established: (1) a convincing mosaic of circumstantial evidence from which a trier

of fact could infer discriminatory intent; (2) that her gender was a motivating factor

for any of ATI’s actions; or (3) that ATI’s reason for her removal and reassignment

was a pretext for retaliation.

The court WILL ENTER SUMMARY JUDGMENT in favor of ATI and

against Ms. Vincent.

I. BACKGROUND

When reviewing a motion for summary judgment, the court “view[s] the

evidence and all factual inferences therefrom in the light most favorable to the non-

moving party, and resolve[s] all reasonable doubts about the facts in favor of the

non-movant.” Washington v. Howard, 25 F.4th 891, 897 (11th Cir. 2022) (quotation

marks omitted).

ATI provides rehabilitation services and specializes “in several fields,

including sports medicine.” (Doc. 54-1 at 2–3 ¶ 3). As part of its sports medicine

services, ATI contracts with “local schools and youth sports programs to provide

athletic trainers to” these programs. (Id. at 3 ¶ 4). ATI and Pinson Valley High

School entered such an agreement. (Id. at 3 ¶ 5, 9–15). Per that agreement, ATI was

required to “designate [two] individual[s] to provide” athletic training services to

Pinson Valley “with the approval of the School.” (Id. at 12–13; see also id. at 3 ¶ 5).

Ms. Vincent was hired by ATI as an athletic trainer in 2017 under the

supervision of a direct supervisor and Jason Pequette, ATI’s sports medicine

director. (Doc. 50-1 at 17–18; doc. 54-1 at 3 ¶ 6; doc. 54-3 at 36). ATI stationed

Ms. Vincent at Pinson Valley where she was supervised by both its athletic director

and its principal, Mr. Turner. (Doc. 50-1 at 17–18; doc. 54-3 at 7; doc. 54-1 at 3 ¶

6). The athletic trainer position at Pinson Valley required Ms. Vincent to work

closely with the school’s football team, as well as other teams at the school. (Doc.

54-3 at 48, 79). While employed at ATI, Ms. Vincent never received a bad review,

was never put on a growth plan, was never reprimanded, and only received praise

for her performance. (Id. at 65–66).

When Ms. Vincent was hired, the other athletic trainer stationed at Pinson

Valley was a man, Chris Woodard. (Id. at 37–38). Ms. Vincent informed ATI that

she witnessed an incident where Mr. Woodard allowed students to engage in

inappropriate behavior. (Id. at 38–39; doc. 54-4 at 6). Soon after, Ms. Vincent’s

direct supervisor at ATI indicated he was going to transfer her to a different high

school. (Doc. 54-3 at 43). Ms. Vincent opposed the transfer and believed that it was

in retaliation for her complaints about Mr. Woodard. (Id.). Ms. Vincent was not

transferred at that time, but Mr. Woodard was transferred to another school in 2018.

(Id. at 15, 44).

Another male athletic trainer employed by ATI, Heath Blackmon, was

assigned to Pinson Valley later that year or at the beginning of 2019. (Id. at 16).

Ms. Vincent believed that Mr. Blackmon was doing a poor job in his athletic trainer

duties. (Doc. 54-3 at 16–17). Ms. Vincent initially took her concerns to Mr. Turner,

who asked her to document Mr. Blackmon’s deficiencies. (Id. at 17, 51). At the

beginning of March 2020, Mr. Turner asked Ms. Vincent to email James Bush, her

direct supervisor at ATI, a list of specific incidents where Mr. Blackmon did his job

incorrectly. (Id. at 17; doc. 54-4 at 12–16). Mr. Turner is copied on the email. (Doc.

54-3 at 50; doc. 54-4 at 12).

Later that month, Mr. Turner emailed Mr. Pequette to “request[] that

[Mr. Blackmon] be removed from Pinson Valley High School effective

immediately.” (Doc. 54-8 at 57). Mr. Pequette testified that after he received this

email from Mr. Turner, ATI HR and management made the decision to move

Mr. Blackmon from Pinson Valley (doc. 54-12 at 19) because “[w]hen the school

says [an athletic trainer is] not to return, [ATI] can’t send them back” to that school

(id. at 20). After Mr. Blackmon was removed from Pinson Valley, Mr. Pequette

“gathered information from area supervisors about what positions were available

and then let [Mr.] Blackmon elect which location he preferred to transfer to.” (Doc.

54-1 at 4 ¶ 10). Mr. Blackmon’s pay did not decrease after his transfer. (Doc. 54-9

at 12).

In February 2020, Mr. Shade was hired as the head football coach and athletic

director at Pinson Valley. (Doc. 50-2 at 269–270). Ms. Vincent was the only woman

who worked with the football team under Mr. Shade. (Doc. 54-3 at 88).

In May 2020, Mr. Turner asked Ms. Vincent to be the assistant athletic

director at Pinson Valley, a position unrelated to her employment with ATI. (Id. at

22). In part, the position would require Ms. Vincent to help the football coaching

staff manage facilities and paperwork, and ensure the team was following Covid-19

protocols. (Id. at 27, 85). A couple days later, Ms. Vincent introduced herself in a

football coaching staff meeting “as the athletic trainer and assistant athletic director.”

(Id. at 23–24).

On June 3, 2020, around a week after Ms. Vincent became an assistant athletic

director, Mr. Turner told her that she would no longer hold that position. (Doc. 54-

3 at 22–23, 28; see doc. 56 at 10 ¶ 29; doc. 74 at 8 ¶ 29). Ms. Vincent claimed that

Mr. Turner did not explain his reasoning but said that she would still be an athletic

trainer at Pinson Valley. (Doc. 54-3 at 28). After her meeting with Mr. Turner, an

assistant coach on the football team told Ms. Vincent that her removal as assistant

athletic director “made sense because” Mr. Shade said that he “was not comfortable

working with [Ms. Vincent] in football because [she] was a female.” (Id. at 21, 29).

After this conversation, Ms. Vincent reached out to Mr. Bush, her direct supervisor,

to see if there were any available athletic trainer assignments around Birmingham,

and he told her about a couple of positions, including one at Chelsea High School.

(Id. at 64).

On the morning of June 5, 2020, Mr. Pequette emailed Mr. Turner that he

“understand[s] that we have some issues with [Ms. Vincent] and may need to move

on. Hoping to discuss. Let me know when you are free.” (Doc. 54-8 at 58).

Mr. Pequette testified that he did not recall how he knew Mr. Turner was having

issues with Ms. Vincent. (Doc. 54-12 at 13–15). Later that morning, Mr. Pequette

“had a phone conversation with [Mr.] Turner during which he informed

[Mr. Pequette] he wanted [Ms.] Vincent removed from performing athletic training

services at Pinson Valley.” (Doc. 54-1 at 4 ¶ 13; doc. 54-5 at 60–62).

After the phone call, Mr. Pequette emailed Laura Erickson, Senior HR

Business Partner at ATI, about transferring Ms. Vincent from Pinson Valley. (Doc.

65-27 at 2). The email stated that Mr. Turner had called Mr. Pequette that morning

and “said they are officially fed up with [Ms. Vincent] and they are telling her today

that they do not want her to return. Mr. Turner said that he would officially document

the request to remove her with valid reasoning and send it over.” (Id.). Mr. Pequette

told Ms. Erickson that he would call Ms. Vincent later that day and “let her know

that the school does not want her back” and that ATI will “obviously need to look

into/investigate the issue” and that she could stay home with pay until the

investigation was complete. (Id.). Ms. Erickson asked Mr. Pequette if Mr. Turner

gave “any indication of what the concerns are” and asked if it was the first time ATI

had “heard of these concerns or [if] there [had] been ongoing issues.” (Id. at 3).

Mr. Pequette replied and said: “It’s a longer story. But yes on going [sic].” (Doc. 65-

27 at 5).

Near the end of the day on June 5, 2020, Mr. Turner asked Mr. Shade to go to

Ms. Vincent’s office to tell her to leave her keys before she left school that day.

(Doc. 50-2 at 192–193; doc. 54-3 at 55–56). Mr. Shade asked two other male football

coaches to come with him to Ms. Vincent’s office because he “didn’t know how she

would react, so [he] felt like [he] needed to take people with [him] to be witnesses

to [their] conversation.” (Doc. 50-2 at 193). Ms. Vincent testified that the interaction

was intimidating and made it clear that she had been terminated and was not

welcome back at Pinson Valley. (Doc. 54-3 at 56). When Mr. Woodard and

Mr. Blackmon were reassigned from Pinson Valley, they were not asked to leave in

a similar manner. (Id. at 21).

Before Ms. Vincent left Pinson Valley that day, she called Mr. Pequette and

told him what happened, and he claimed he was “completely unaware and wanted

to know what had been going on at Pinson” Valley (id. at 57) despite already talking

to Mr. Turner about his issues with Ms. Vincent (doc. 54-8 at 58; doc. 54-1 at 4 ¶ 13).

During this call, Ms. Vincent told Mr. Pequette that she believed her removal from

Pinson Valley was based on Mr. Shade’s comments about preferring not to work

with women. (Doc. 54-3 at 57, 59–60, 74). Mr. Pequette told Ms. Vincent to “play

nice and plead [her] case” and that “he would be in contact.” (Id. at 57). June 5, 2020

was the last day Ms. Vincent worked at Pinson Valley. (See id. at 33–34).

Soon after Ms. Vincent’s removal from Pinson Valley, Mr. Bush identified a

man, Alex Gee, to be one of the new athletic trainers at Pinson Valley. (Doc. 54-9

at 15; doc. 50-8 at 33). A couple weeks later, a woman, Taylor Cole, was transferred

to the remaining athletic trainer position at Pinson Valley. (Doc. 54-1 at 7 ¶ 21, see

id. at 17).

Mr. Pequette asked Mr. Turner to put his grievances with Ms. Vincent in

writing and Mr. Turner complied by sending Mr. Pequette a letter on June 8, 2020.

(Doc. 54-5 at 61; doc. 54-8 at 66). In the letter Mr. Turner stated that he wanted

Ms. Vincent removed from Pinson Valley because she “has created somewhat of a

toxic work environment for some of [Pinson Valley’s] coaches.” (Doc. 54-8 at 66).

Mr. Turner stated that she made “personal comments” about the coaching staff and

was “attempt[ing] to assert her ‘authority’ by giving guidance and directions to

coaches that have absolutely nothing to do with her role as an athletic trainer.” (Id.).

Further, Mr. Turner asserted that after his June 3, 2020 meeting with Ms. Vincent to

ask her to stop portraying herself as an assistant athletic director, she “voice[d] her

dissatisfaction with her role as . . . an athletic trainer” and made further “derogatory

comments about certain coaches.” (Id.). Mr. Turner testified that his reasons for

requesting Ms. Vincent’s reassignment as laid out in the June 8, 2020 email were

consistent with what Mr. Turner and Mr. Pequette discussed in their June 5, 2020

phone call. (Doc. 54-5 at 80).

On June 9, 2020, after reviewing Mr. Turner’s letter, Ms. Erickson determined

that there was not “enough documentation to” terminate Ms. Vincent’s employment

with ATI. (Doc. 65-32 at 2). Ms. Erickson recommended that ATI inform

Ms. Vincent that she could not return to Pinson Valley and “to offer her all open

positions” in Alabama. (Id.).

On June 11, 2020, Ms. Erickson emailed Ms. Vincent about three new work

assignments from which she could pick from: (1) a split assignment at Oakman High

School and Carbon Hill High School in Walker County; (2) Pelham Middle School,

and (3) Oak Mountain Middle School. (Doc. 54-4 at 27–28). These were all the open

positions in Alabama that ATI had as of June 11, 2020. (Doc. 54-1 at 5–6 ¶¶ 17–20).

Ms. Erickson told Ms. Vincent that accepting the middle school positions would

result in a pay cut but that her salary would remain the same if she accepted the high

school assignment. (Doc. 54-4 at 28). ATI’s “middle school assignments, as a group,

have lower compensation rates than high school assignments” because there is a

“lower number of students, sports, and activities associated with middle school

assignments as compared to high school assignments.” (Doc. 54-1 at 6 ¶ 22). The

middle school assignments would also require Ms. Vincent to assist at high school

events a couple evenings a week. (Doc. 54-4 at 22–24). If Ms. Vincent did not wish

to work at any of the new assignments, she would “be parting ways with ATI.” (Id.

at 27).

Ms. Vincent asked if there were any open positions for high schools in

Birmingham because she had heard there was an available position at Chelsea High

School (id. at 27), but ATI indicated that no such position was open (id. at 26).

Ms. Vincent testified that she did not want to work at one of the middle schools

because it would require a pay cut, and she did not want to take the split assignment

because it would require a ninety-minute commute and for her to cover two high

schools instead of one. (Doc. 54-3 at 63, 65). On June 15, 2020, Ms. Vincent

accepted a position at Pelham Middle School but informed Ms. Erickson and

Mr. Pequette that it was done “reluctantly” and that she believed her reassignment

was “in retaliation for [her] complaints of gender discrimination and is, itself, further

gender discrimination.” (Doc. 54-4 at 21).

Ms. Erickson set up a call between Ms. Vincent and Mr. Pequette on June 16,

2020, to respond to Ms. Vincent’s email about discrimination and retaliation. (Id.).

During that call, Ms. Erickson informed Ms. Vincent that Pinson Valley’s request

that she be removed was not discriminatory or retaliatory. (Doc. 73-3 at 4; see doc.

65-36 at 2). Ms. Erickson also offered Ms. Vincent a severance package of a

continuation of pay for two weeks if she did not want to accept the position at Pelham

Middle School. (Doc. 73-3 at 16, 20).

On July 14, 2020, Ms. Vincent resigned from her job at ATI because of “ATI’s

recent illegal actions towards [her] in removing [her] from [her] position at Pinson

Valley High School because the head football coach did not feel comfortable

working with a female, then forcing [her] to choose between two less desirable/less

paying positions to have to accept one with less pay.” (Doc. 54-4 at 30).

II. DISCUSSION

Summary judgment is appropriate if “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). “A genuine issue of material fact exists when the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Bowen v. Manheim

Remarketing, Inc., 882 F.3d 1358, 1362 (11th Cir. 2018) (quotation marks omitted).

Courts must “review[] the evidence and draw[] all reasonable inferences in the light

most favorable to the non-moving party.” Owen v. I.C. Sys., Inc., 629 F.3d 1263,

1270 (11th Cir. 2011).

Ms. Vincent has brought a Title VII gender discrimination claim (“Count

Four”) and a Title VII retaliation claim (“Count Five”) against ATI for its removal

of Ms. Vincent from Pinson Valley and its reassignment, with a corresponding pay

cut, of Ms. Vincent to Pelham Middle School. (Doc. 7 at 25–40 ¶¶ 147–253).1 In

support of summary judgment, ATI first argues that it cannot be liable for the claims

to the extent they are based on Ms. Vincent’s removal from Pinson Valley because

it did not have control over that decision. (Doc. 56 at 17–29). ATI then argues that

Ms. Vincent cannot survive summary judgment for either her gender discrimination

or retaliation claim. (Id. at 29–37). The court will first address whether ATI had

control over Ms. Vincent’s removal from Pinson Valley, then Ms. Vincent’s gender

discrimination claim, and finally Ms. Vincent’s retaliation claim.

1. Did ATI have control over Ms. Vincent’s removal?

ATI argues that because Mr. Turner made the decision to remove Ms. Vincent

from Pinson Valley, ATI is not responsible for the decision. (Id. at 17–22).

1 In its motion for summary judgment, ATI argues that Ms. Vincent’s removal and

reassignment should be treated as two separate potentially-discriminatory actions. (Doc. 56 at 15–

16). In her response, Ms. Vincent does not address this argument but seems to agree that the

removal and the reassignment are distinct acts. (See doc. 74 at 40) (“ATI’s removal of

[Ms.] Vincent from [Pinson Valley] and the reduction in pay are adverse actions.”) (emphasis

added). Thus, the court will consider Ms. Vincent’s removal from Pinson Valley and her

reassignment to Pelham Middle School as separate actions.

Ms. Vincent contends that ATI was the decisionmaker in removing Ms. Vincent

from Pinson Valley. (Doc. 74 at 29–34). Both parties have submitted evidence to

support their respective contentions. (See doc. 56 at 17–22; doc. 74 at 29–34).

Title VII prevents employers from discriminating against employees based on

their membership in certain protected classes or retaliating against an employee for

the employee’s protected conduct. Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 56 (2006). Only an “employer” can be liable under Title VII for any alleged

discrimination or retaliation against an employee. See 42 U.S.C. § 2000e-2 (“It shall

be an unlawful employment practice for an employer . . . to discriminate against any

individual . . . .”); id. § 2000e-3(a) (“It shall be an unlawful employment practice for

an employer to discriminate against any of his employees . . . because he has opposed

any practice made an unlawful employment practice . . . .”).

In situations where one entity employs an individual to perform services for a

client, the original entity is considered a plaintiff’s “employer” as long as it retains

“sufficient control of the terms and conditions of employment.” Virgo v. Riviera

Beach Assocs., Inc., 30 F.3d 1350, 1360 (11th Cir. 1994) (quotation marks omitted).

When an entity has no control “over the adverse employment decision on which the

Title VII suit is based,” it cannot be liable for any alleged discriminatory or

retaliatory conduct related to the adverse employment decision. Llampallas v. Mini-

Circuits, Lab, Inc., 163 F.3d 1236, 1244–45 (11th Cir. 1998).

There is a dispute of fact about which party had control over the decision to

transfer Ms. Vincent. ATI contends that Mr. Turner made the decision to remove

Ms. Vincent from Pinson Valley and provides testimony from Ms. Vincent,

Mr. Turner, and Mr. Pequette all claiming that it was Mr. Turner’s decision to have

Ms. Vincent reassigned. (Doc. 56 at 17–18; see doc. 54-3 at 34; doc. 54-5 at 80; doc.

54-12 at 13). But Ms. Vincent provides separate testimony from Mr. Turner who

claims that it was ATI’s decision to move Ms. Vincent because she was ATI’s

employee not Pinson Valley’s. (Doc. 54-5 at 73). Ms. Vincent also points to ATI’s

contract with Pinson Valley, which provides that ATI “remain[s] solely liable for

the oversight and performance” of the athletic trainers. (Doc. 54-1 at 10–11). Finally,

Ms. Vincent references the June 8, 2020 letter Mr. Turner wrote to Mr. Pequette

explaining some of the issues he had with Ms. Vincent. (Doc. 65-23 at 2). At the end

of the letter, Mr. Turner states that “[t]he aforementioned information is precisely

why I am asking for Mrs. Emily Vincent to be removed from her role as athletic

director from Pinson Valley High School.” (Id.) (emphasis added). If Mr. Turner had

control over whether Ms. Vincent worked at Pinson Valley, he would not need to

ask Mr. Pequette to remove her.

Because there is a dispute of material fact as to whether ATI had control over

the decision to remove Ms. Vincent from her position at ATI, the court will not grant

summary judgment on this ground. And because Ms. Vincent is the non-movant, the

court will assume for the remainder of this opinion that ATI made the decision to

remove Ms. Vincent from Pinson Valley.

2. Gender Discrimination Claim

Next, ATI contends that Ms. Vincent’s gender discrimination claim cannot

survive summary judgment. (Doc. 56 at 22–29). Ms. Vincent argues that she can

survive summary judgment using the convincing mosaic framework and the mixed-

motive theory. (Doc. 74 at 34–40). The court will first analyze Ms. Vincent’s gender

discrimination claim under the convincing mosaic framework, and then address the

claim under the mixed-motive theory.

a. Convincing Mosaic Framework

Under the convincing mosaic framework for gender discrimination claims, a

plaintiff can survive summary judgment if she establishes “a convincing mosaic of

circumstantial evidence that would allow a jury to infer” discrimination on the part

of her employer. Lewis v. City of Union City, 934 F.3d 1169, 1185 (11th Cir. 2019)

(quotation marks omitted). “An inference is not a suspicion or a guess. It is a

reasoned, logical decision to conclude that a disputed fact exists on the basis of

another fact.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 n.25 (11th Cir.

2011) (cleaned up). A convincing mosaic “may be shown by evidence that

demonstrates, among other things, (1) suspicious timing, ambiguous statements, and

other bits and pieces from which an inference of [retaliatory] intent might be drawn,

(2) systematically better treatment of similarly situated employees, and (3) that the

employer’s justification is pretextual.” Lewis, 934 F.3d at 1185 (cleaned up). The

court will first address whether Ms. Vincent has offered enough evidence to establish

a convincing mosaic for her discriminatory removal claim, then address her

discriminatory reassignment claim under the convincing mosaic framework.

i. Ms. Vincent’s removal from Pinson Valley

The evidence Ms. Vincent offers to show her removal from Pinson Valley was

discriminatory under the convincing mosaic standard is: (1) that ATI made the

decision to remove Ms. Vincent from Pinson Valley; (2) Mr. Blackmon received

more favorable treatment when he was removed from Pinson Valley than

Ms. Vincent; (3) that the timing of her removal from Pinson Valley was suspicious

because Mr. Shade had been “around Ms. Vincent for a total of fifteen days” before

she was removed; (4) Mr. Pequette stated that even if he knew Pinson Valley wanted

to remove Ms. Vincent from her position as athletic trainer because of her gender,

he would comply; (5) Ms. Vincent complained to Mr. Pequette before her removal

about discriminatory comments made by Mr. Shade; (6) the fact that Ms. Vincent’s

replacement was a man; (7) that Ms. Vincent did not have any performance issues

at Pinson Valley; and (8) that ATI offered Ms. Vincent a severance package if she

wished to leave ATI. (Doc. 74 at 34, 36–40, 45–46).

First, Ms. Vincent claims that she can rely on the “falsity of [ATI’s]

explanation to infer the ultimate fact of discrimination.” (Id. at 39). Ms. Vincent

argues that because there is evidence that ATI had control over her removal from

Pinson Valley, the court can interpret ATI’s contention that it did not have control

over Ms. Vincent’s removal to be a falsity utilized to hide ATI’s true, discriminatory

reason for Ms. Vincent’s removal. (Id. at 39–40).

The trier of fact is permitted to “infer from the falsity of [an employer’s]

explanation that the employer is dissembling to cover up a discriminatory purpose.”

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). But an

employer’s explanation must be “unworthy of credence” for the plaintiff to gain such

a presumption. Id. There can be a factual dispute about an important issue in a case

without anyone lying; for example, the dispute could be caused by a

miscommunication or misunderstanding between the parties. Because a dispute of

fact does not invariably indicate malicious intent, the court cannot assume an

employer acted discriminatorily just because it offers an alternative explanation for

its actions that the court cannot credit at the summary judgment stage. See Mize v.

Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996) (“Inferences from the

nonmoving party’s ‘specific facts’ as to other material facts . . . may be drawn only

if they are reasonable in view of other undisputed background or contextual facts

and only if such inferences are otherwise permissible under the governing

substantive law.”).

Second, Ms. Vincent contends that Mr. Blackmon received better treatment

than she did when he was removed from Pinson Valley. (Doc. 74 at 40).

Ms. Vincent’s argument does not clarify exactly what treatment she is referencing

(see id.) and the only differing treatment that the court can discern from the record

is that Mr. Shade did not inform Mr. Blackmon of his removal from Pinson Valley

in the presence of two other coaches like he did for Ms. Vincent (doc. 54-3 at 65).

Assuming this constitutes evidence of gender discrimination, Mr. Shade’s actions

cannot be imputed to ATI. Mr. Turner is the person who told Mr. Shade to inform

Ms. Vincent of her removal from Pinson Valley (doc. 50-2 at 192–193; doc. 54-3 at

55–56), there is no evidence that Mr. Pequette or anyone at ATI knew that

Mr. Turner asked this of Mr. Shade. Thus, any differences between how

Mr. Blackmon learned of his removal and how Ms. Vincent learned of her removal

do not raise an inference that ATI intentionally discriminated against Ms. Vincent.

Ms. Vincent’s third piece of evidence—the suspicious timing of her removal

after fifteen days of working with Mr. Shade—is similarly unpersuasive. The only

evidence she cites to support this argument is a 2020 calendar with six days circled:

February 27, March 13, May 31, June 1, June 5, and June 8. (Doc. 65-41 at 2; see

doc. 74 at 34). This is not evidence that Ms. Vincent was “around” Mr. Shade for

fifteen days before she was removed. Further, there is evidence that Mr. Shade was

hired in February of 2020 (doc. 50-2 at 269–270), so it is unclear from Ms. Vincent’s

arguments and evidence how she was only around Mr. Shade for fifteen days before

she was removed from Pinson Valley. Thus, Ms. Vincent has not established there

was suspicious timing regarding Mr. Shade’s start at Pinson Valley and

Ms. Vincent’s removal.

Ms. Vincent’s fifth piece of evidence, that she complained to Mr. Pequette

before her removal about discriminatory comments made by Mr. Shade, does not

establish ATI discriminated against Ms. Vincent. (See doc. 74 at 38). Knowing an

individual made a discriminatory comment is not evidence that the person with

knowledge later acted with discriminatory intent. See Llampallas, 163 F.3d at 1248–

49 (holding that when person with discriminatory animus and decisionmaker are

different people, plaintiff must prove that the discriminatory animus caused the

decisionmaker to take an adverse employment action). For Mr. Pequette’s

knowledge of Mr. Shade’s comments to be evidence that ATI discriminated against

Ms. Vincent, Ms. Vincent would have had to offer evidence that Mr. Shade’s animus

caused Mr. Pequette to remove Ms. Vincent from Pinson Valley, and there is no such

evidence in the record.

Ms. Vincent’s seventh piece of evidence is that she did not have performance

issues. (See doc. 74 at 38). Ms. Vincent’s success as an athletic trainer is not evidence

that ATI discriminated against her in removing her from Pinson Valley. ATI asserts

it removed Ms. Vincent because Mr. Turner requested it. (Doc. 56 at 25; see also

doc. 54-1 at 12). And while Ms. Vincent contends that ATI made the decision to

remove her from Pinson Valley (doc. 74 at 29–34), she does not dispute that ATI’s

decision was made at Pinson Valley’s request (see id. at 34). Because ATI removed

Ms. Vincent because of Mr. Turner’s request, that Ms. Vincent had no disciplinary

issues would not have factored into its removal decision. So, whether Ms. Vincent

was a good employee was not relevant to ATI’s decision to remove her, and thus

cannot be evidence that ATI’s decision was discriminatory.

Finally, that ATI offered Ms. Vincent a severance package when she put in

her two weeks’ notice is not evidence of discrimination. (See doc. 74 at 45–46; see

also doc. 73-3 at 16, 20). Ms. Vincent cites the Eleventh Circuit’s decision in

Patterson v. Georgia Pacific, LLC, 38 F.4th 1336, 1354–55 (11th Cir. 2022) for the

proposition that an offer to pay employees severance packages that are contingent

on a full release of claims can be evidence of pretext. (Doc. 74 at 46). Ms. Vincent

argues that even though there is no evidence the severance package included a

release of her claims against ATI, it “is the normal practice when an employee is

offered a severance package” and thus the court should assume ATI’s severance

offer included such a release. (Id. at 45). But in Patterson, there was evidence that

the employer’s offer of a severance package affirmatively included a release of

claims. Patterson, 38 F.4th at 1354–55. Here, because there is no such evidence in

the record, the court is not willing to assume such a contingency. Thus, ATI’s offer

of a severance package to Ms. Vincent is not evidence of discrimination.

Therefore, the only evidence Ms. Vincent offers that could create an inference

of discrimination under the convincing mosaic standard is (1) Mr. Pequette’s

testimony that he would have complied with the request to transfer Ms. Vincent from

Pinson Valley even if he knew Mr. Turner and Mr. Shade were discriminating

against Ms. Vincent because of her gender and (2) that Ms. Vincent was replaced at

Pinson Valley by a man. (See doc. 54-12 at 21; doc. 74 at 37). Considered together,

this evidence does not create an inference that any of ATI or Mr. Pequette’s actions

were induced by Ms. Vincent’s gender. Thus, a reasonable jury could not look at

Ms. Vincent’s evidence and infer that ATI removed Ms. Vincent from Pinson Valley

due to her gender.

ii. Ms. Vincent’s reassignment to Pelham Middle School

As support for her argument that her reassignment to Pelham Middle School

survives summary judgment under the convincing mosaic theory, Ms. Vincent relies

on any relevant evidence previously discussed, as well as two additional pieces of

evidence: (1) that she received a pay cut after her reassignment and (2) that

Mr. Blackmon did not receive a pay cut when he was reassigned from Pinson Valley.

(Doc. 74 at 38–39).

Without context, Ms. Vincent and Mr. Blackmon’s pay discrepancies after

their reassignments might give the appearance of discrimination. But ATI provides

a non-discriminatory reason why Ms. Vincent received a pay cut when she was

transferred from Pinson Valley even though Mr. Blackmon did not: because

Ms. Vincent selected a job with a corresponding pay cut. (See doc. 56 at 32). In fact,

ATI has offered evidence it treated Mr. Blackmon and Ms. Vincent identically after

their removal from Pinson Valley. Both were offered every available position that

ATI had at the time and were allowed to choose which open position they wished to

transfer to. (See doc. 54-1 at 4 ¶¶ 9–10, 5–6 ¶¶ 17–20). Both were offered positions

that would not require them to accept a pay cut (id. at 6 ¶ 21; see doc. 54-9 at 12),

but Ms. Vincent decided to accept a lower-paying position (see doc. 65-35 at 2, 10).

Ms. Vincent’s argument does not address her agency in the pay cut. (See doc. 74 at

38–39). Thus, that her new position paid less money when Mr. Blackmon’s did not

is not evidence of discrimination.

b. Mixed Motive Theory

Before addressing the merits of Ms. Vincent’s arguments under the mixed

motive theory, the court must address both parties’ contentions that the court should

not consider the other parties’ arguments on this issue. In its initial brief, ATI did

not make an argument for summary judgment using the mixed motive theory. (See

generally doc. 56). In response, Ms. Vincent asserts that she intends to survive

summary judgment under the mixed motive theory and argues that because ATI did

not address her mixed-motive argument in its initial brief, it “abandoned any

argument against this theory.” (Doc. 74 at 35 n.4).

In reply, ATI argues that it should not be precluded from opposing

Ms. Vincent’s arguments under the mixed-motive theory because her complaint

does not state she is pursuing her discrimination claim under that theory and thus

ATI should not have been required to guess that she would seek to survive summary

judgment that way. (Doc. 77 at 16). ATI also argues that Ms. Vincent cannot bring

a mixed-motive claim for the first time at summary judgment because she is not

permitted to “raise new claims at the summary judgment stage.” (Id. at 15–16)

(quoting Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004)).

Discrimination claims under Title VII are classified “as either mixed-motive

or single-motive claims.” Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1235

(11th Cir. 2016). A mixed-motive claim requires that a plaintiff show an illegal bias

“was a motivating factor for an adverse employment action, even though other

factors motivated the action.” Id. (cleaned up). In contrast, a single-motive claim

requires that the plaintiff show “bias was the true reason for the adverse action.” Id.

These different theories of discrimination are simply alternative causation standards,

not distinct causes of action. Id. at 1235 n.4; see also Price Waterhouse v. Hopkins,

490 U.S. 228, 247 n.12 (1989) (plurality opinion), superseded by statute on other

grounds, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074, as

recognized in Comcast Corp. v. Nat’l Assoc. of Afr. American-Owned Media, 140 S.

Ct. 1009, 1017 (2020).

Therefore, the court will consider Ms. Vincent’s gender discrimination claim

under a mixed-motive theory of causation. Ms. Vincent has provided the court with

no binding authority for her proposition that ATI cannot oppose an argument she

made for the first time in her response in opposition to summary judgment. (See doc.

74 at 35 n.4). The court is also persuaded by ATI’s arguments that it should not be

required to brief every potential strawman issue in a motion for summary judgment

to avoid waiving arguments against them. (See doc. 77 at 16). Thus, the court will

now address the merits of Ms. Vincent’s gender discrimination claim under the

mixed-motive framework.

To survive summary judgment using circumstantial evidence under a mixed-

motive theory, a plaintiff bears the burden of proof to establish “(1) the defendant

took an adverse employment action against the plaintiff; and (2) a protected

characteristic was a motivating factor for the defendant’s adverse employment

action.” Quigg, 814 F.3d at 1232–33 (cleaned up). The court will first address

whether Ms. Vincent satisfied her burden regarding her discriminatory removal

claim and then will address her discriminatory reassignment claim.

i. Ms. Vincent’s removal from Pinson Valley

ATI contends that Ms. Vincent’s removal from Pinson Valley cannot survive

summary judgment under the mixed motive theory because there is no evidence that

her gender was a motivating factor in her removal from Pinson Valley. (Doc. 77 at

17; see id. at 13–15).2

Ms. Vincent relies on the same evidence used to defend her convincing mosaic

argument to establish that her gender was a motivating factor in ATI’s decision to

remove her from Pinson Valley. (Doc. 74 at 36–40, 45–46). Just as the court found

for her argument under the convincing mosaic standard, none of the evidence offered

by Ms. Vincent establishes that any of ATI or Mr. Pequette’s actions in removing

Ms. Vincent from Pinson Valley were motivated by Ms. Vincent’s gender. See supra

pg. 16–21.

ii. Ms. Vincent’s reassignment to Pelham Middle School

ATI contends that its reassignment (with a corresponding pay cut) of

Ms. Vincent was not an adverse action because ATI gave Ms. Vincent an option to

accept an assignment that would have allowed her salary to remain the same after

reassignment. (Doc. 56 at 29–33). ATI also argues that Ms. Vincent has not offered

2 ATI conceded adverse employment when analyzing Ms. Vincent’s claim under the

McDonnell Douglas framework. (See doc. 56 at 22–24). Later ATI argued Ms. Vincent did not

present evidence that the removal was an adverse employment action under the mixed-motive

analysis. (Doc. 77 at 17). ATI does not acknowledge or explain its different approach. As

previously discussed, mixed-motive and single motive discrimination claims are not separate

actions, but different theories of proof. Quigg, 814 F.3d at 1235 n.4. Thus, an adverse action under

the McDonnell Douglas framework is also an adverse action under the mixed-motive theory.

evidence that ATI’s decision to reassign Ms. Vincent—and her reassignment’s

corresponding pay cut—were motivated by Ms. Vincent’s gender. (Doc. 77 at 18–

19).

For discrimination claims, an adverse employment action must be a “tangible

employment action” which “consist[s] of things that affect continued employment

or pay—things like terminations, demotions, suspensions without pay, and pay

raises or cuts—as well as other things that are similarly significant standing alone.”

Monaghan v. Worldpay US, Inc., 955 F.3d 855, 860 (11th Cir. 2020). Whether an

employer’s action is considered adverse is determined “as viewed by a reasonable

person in the circumstances,” an “employee’s subjective view of the . . . action is not

controlling.” Webb-Edwards v. Orange Cnty. Sheriff’s Off., 525 F.3d 1013, 1031

(11th Cir. 2008) (quotation marks omitted).

Ms. Vincent does not argue that her reassignment and corresponding pay cut

to Pelham Middle School was an adverse action for her discrimination claim. (See

generally doc. 74). Under the mixed motive framework, it is Ms. Vincent’s burden

to establish she suffered an adverse action, and thus her failure to argue that her

reassignment and corresponding pay cut was an adverse action for her discrimination

claim is fatal. See Quigg, 814 F.3d at 1239. But even if Ms. Vincent did suffer an

adverse action, she has not offered evidence ATI reassigned her to Pelham Middle

School because of her gender.

Ms. Vincent’s evidence regarding ATI’s motivation for reassigning her to

Pelham Middle School is the same evidence that she provided for her convincing

mosaic claim: (1) that she received a pay cut after her reassignment and (2) that

Mr. Blackmon did not receive a pay cut when he was reassigned from Pinson Valley.

(Doc. 74 at 38–39). This evidence is not enough to establish that ATI’s reassignment

of Ms. Vincent was motivated by Ms. Vincent’s gender because ultimately both

Ms. Vincent and Mr. Blackmon were treated equally throughout the reassignment

process, as explained above. See supra pg. 21–22.

Accordingly, because Ms. Vincent cannot survive summary judgment for her

discrimination claim under the convincing mosaic or mixed-motive theories, the

court WILL GRANT ATI’s motion for summary judgment as to Count Four.

3. Retaliation Claim

ATI argues it is entitled to summary judgment on Ms. Vincent’s Title VII

retaliation claim because she cannot establish a prima facie case of retaliation or

pretext under the McDonnell Douglas standard. (Doc. 56 at 26–32, 34–36).

Ms. Vincent disagrees. (Doc. 74 at 40–46).

Title VII prohibits employers from retaliating against employees because,

among other things, the employee “has opposed any practice made an unlawful

employment practice” under Title VII. 42 U.S.C. § 2000e-3(a). Generally, retaliation

claims under Title VII can be established with direct or circumstantial evidence of

retaliatory conduct. Rioux v. City of Atlanta, 520 F.3d 1269, 1274 (11th Cir. 2008).

Where, as here, a plaintiff relies on circumstantial evidence to prove her retaliation

claim, the court typically analyzes the claim under the McDonnell Douglas

framework. Owens v. Governor’s Off. of Student Achievement, 52 F.4th 1327, 1337

(11th Cir. 2022).

Under this test, the plaintiff must first establish a prima facie case. Id. at 1338.

“If the plaintiff satisfies this burden,” her employer must then “articulate a

legitimate, [nonretaliatory] reason for his actions.” Id. If such a reason is proffered,

the burden returns to the plaintiff to “show that the reason given by the employer

was a mere pretext for” retaliation. Id.

A plaintiff satisfies her burden of establishing a prima facie case of retaliation

under Title VII when she demonstrates “(1) that she engaged in statutorily protected

activity, (2) that she suffered an adverse action, and (3) that the adverse action was

causally related to the protected activity.” Gogel v. Kia Motors Mfg. of Ga., Inc., 967

F.3d 1121, 1135 (11th Cir. 2020) (quotation marks omitted).

Ms. Vincent alleges that ATI retaliated against her for complaining about

gender discrimination to Mr. Pequette by removing her from Pinson Valley and

transferring her to a new position at Pelham Middle School with a corresponding

pay cut. (Doc. 7 at 33–40 ¶¶ 204–253). The court will first address whether

Ms. Vincent can make out a prima facie case of retaliation for her removal from

Pinson Valley and then address whether she can do so for her reassignment to

Pelham Middle School. Finally, the court will address whether Ms. Vincent can

establish ATI’s proffered reasons for its actions were pretextual.

a. Ms. Vincent’s removal from Pinson Valley

For Ms. Vincent’s retaliatory removal claim, both parties agree that

Ms. Vincent engaged in statutorily protected activity and that she suffered an

adverse action. (See doc. 56 at 26–29). But ATI contends that Ms. Vincent is unable

to establish a prima facie case of retaliation regarding her removal from Pinson

Valley because her protected activity occurred after the removal decision, breaking

the chain of causation. (Id.).

A plaintiff can establish a causal connection between her protected activity

and her employer’s adverse action by showing “that the relevant decisionmaker was

aware of the protected conduct, and that the protected activity and the adverse

actions were not wholly unrelated.” Patterson, 38 F.4th at 1351. “[C]lose temporal

proximity between the employee’s protected conduct and the adverse action is

sufficient circumstantial evidence to create a genuine issue of material fact of a

causal connection.” Id. at 1352 (cleaned up).

Ms. Vincent states that her protected activity (informing Mr. Pequette about

Mr. Shade’s comments) occurred within two days of her removal, which is sufficient

temporal proximity to establish causation. (Doc. 74 at 41–44); see Patterson, 38

F.4th at 1352 (considering one week to be close temporal proximity). To establish

this, Ms. Vincent cites to Mr. Pequette’s testimony that Ms. Vincent told him about

Mr. Shade’s comments before her removal. (Doc. 74 at 12 ¶ 43; see doc. 54-12 at

25). But Mr. Pequette’s testimony is inconsistent with Ms. Vincent’s own testimony

that she told Mr. Pequette about the comments in a telephone call after she was

removed. (Doc. 54-3 at 57). The court is not required to “declin[e] to credit some of

the nonmovant’s own testimony” because a different witness’s testimony is “most

helpful to the nonmovant.” Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005)

(en banc) (“Our duty to read the record in the nonmovant’s favor stops short of not

crediting the nonmovant’s testimony in whole or part.”); see also Jones v. UPS

Ground Freight, 683 F.3d 1283, 1295–96 (11th Cir. 2012). Given Ms. Vincent’s

testimony, there is no causal connection between her removal from Pinson Valley

and her complaint of discrimination. Thus, Ms. Vincent has failed to establish a

prima facie case of retaliation for her removal from Pinson Valley.

b. Ms. Vincent’s reassignment to Pelham Middle School

For Ms. Vincent’s retaliatory reassignment claim, both parties agree that

Ms. Vincent engaged in statutorily protected activity and that there is a causal

connection between Ms. Vincent’s protected activity and her reassignment. (See doc.

56 at 29–33). But ATI contends that Ms. Vincent’s reassignment to Pelham Middle

School was not an adverse action because it offered her every available position it

had at that time. (Id.). In particular, ATI offered Ms. Vincent another high school

position at the same pay she had been receiving but Ms. Vincent selected Pelham

Middle School.3 Ms. Vincent only argues that her reassignment was an adverse

action because it required that she take a pay cut and assist at high school events a

couple evenings a week. (Doc. 74 at 40–41).

Retaliation claims under Title VII employ a more lenient definition of adverse

actions than discrimination claims do. See White, 548 U.S. at 63–67. For an

employer’s action to be considered adverse in retaliation claims, “a plaintiff must

show that a reasonable employee would have found the challenged action materially

adverse,” which means it might “have dissuaded a reasonable worker from making

or supporting a charge of discrimination.” Id. at 68.

Ms. Vincent’s argument that her reassignment was an adverse action ignores

her choice in the matter. (See doc. 74 at 40–41). While normally a pay cut would

constitute an adverse action, Ms. Vincent was the one that made the decision to go

to a school with a corresponding pay cut, ATI offered her a position that would not

decrease her salary, but she decided to accept the lower-paying position. That she

took a pay cut and had additional responsibilities at Pelham Middle School is

3 The court notes that the high school position ATI offered Ms. Vincent would have

required her to make a ninety-minute commute every day. The court does not decide whether the

increased commute would constitute an adverse action because Ms. Vincent does not make that

argument.

irrelevant when it was her choice to work there. Thus, because Ms. Vincent’s

reassignment was not an adverse action, she has failed to establish a prima facie case

of retaliation for her reassignment to Pelham Middle School.

c. ATI’s proffered reason and pretext

Even if Ms. Vincent could establish a prima facie case of retaliation, she

would not prevail. If a plaintiff puts forth a prima facie case of retaliation, the burden

shifts to the defendant “to articulate a legitimate, nonretaliatory reason for” the

adverse action. Tolar v. Bradley Arant Boult Commings, LLP, 997 F.3d 1280, 1289

(11th Cir. 2021). An employer “need not persuade the court that it was actually

motivated by the proffered reasons. . . . It is sufficient if the [employer’s] evidence

raises a genuine issue of fact as to whether it [retaliated] against the” employee. Tex.

Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 254–55 (1981) (internal citation

omitted).

ATI’s proffered reason for Ms. Vincent’s removal from Pinson Valley is that

Mr. Turner requested that she not return to the school. (Doc. 56 at 28–29). ATI’s

reason for her reassignment and corresponding pay cut is that it offered Ms. Vincent

all of its available positions after she was removed and she accepted one with a pay

cut. (Id. at 35). Thus, the burden shifts to Ms. Vincent to establish ATI’s proffered

reasons for her removal and reassignment were pretextual. See Meeks v. Comput.

Assocs. Int’l, 15 F.3d 1013, 1021 (11th Cir. 1994).

To establish pretext, a plaintiff must provide evidence “both that the reason

was false, and that [retaliation] was the real reason” for the adverse employment

action. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (emphasis omitted).

The only argument Ms. Vincent makes regarding pretext is that there is close

temporal proximity between her complaint of discrimination and her removal from

Pinson Valley and reassignment to Pelham Middle School. (Doc. 74 at 44–45). Even

assuming that is pretext evidence, it does not establish that retaliation was the real

reason for any of ATI’s actions. And even if the court were to interpret Ms. Vincent’s

arguments regarding the convincing mosaic to be pieces of pretext evidence, the

court has already explained why this evidence is not sufficient to survive summary

judgment.

Accordingly, Ms. Vincent cannot survive summary judgment for her

retaliation claim under the McDonnell Douglas standard and the court WILL

GRANT ATI’s motion for summary judgment as to Count Five.

III. CONCLUSION

Accordingly, the court WILL GRANT SUMMARY JUDGMENT in favor

of ATI and against Ms. Vincent.

The only remaining claims in this case are state law claims against Mr. Turner

and Mr. Shade. (See doc. 7 at 41–47 ¶¶ 254–297). In her complaint, Ms. Vincent

contends the court has supplemental jurisdiction over those claims pursuant to

28 U.S.C. § 1367(c). (See id. at 14 1).

“{C]ourt[s] must zealously insure that jurisdiction exists over a case, and

should itself raise the question of subject matter jurisdiction at any point in the

litigation where a doubt about jurisdiction arises.” Smith v. GTE Corp., 236 F.3d

1292, 1299 (11th Cir. 2001). All federal claims in this case have been dismissed.

The court has doubts as to whether it has diversity Jurisdiction over the remaining

state law claims. See Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1269 (11th Cir.

2013) (“Residence along is not enough” to determine citizenship for diversity

purposes). And while the court could exercise supplemental jurisdiction over the

remaining claims, 28 U.S.C. § 1367(a), the Eleventh Circuit encourages district

courts to decline to exercise supplemental jurisdiction over state law claims if all

federal claims are dismissed before trial, Raney v. Allstate Ins. Co., 370 F.3d 1086,

1089 (11th Cir. 2004). Accordingly, the court WILL ORDER Ms. Vincent to

address, in writing, whether this court has diversity jurisdiction on or before July 6,

2023.

DONE and ORDERED this June 22, 2023.

Lo

UNITED STATES DISTRICT JUDGE

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